December 30, 1993 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 93-1029
UNITED STATES OF AMERICA,
Plaintiff, Appellee,
v.
DANIEL A. ATILIO-ADINOLFI,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Hector M. Laffitte, U.S. District Judge]
Before
Cyr, Boudin and Stahl,
Circuit Judges.
Benicio Sanchez Rivera, Federal Public Defender, and Miguel A.A.
Nogueras-Castro, Assistant Federal Public Defender, on brief for
appellant.
Charles E. Fitzwilliam, United States Attorney, Carlos A. P rez,
Assistant United States Attorney, and Jos A. Quiles-Espinosa, Senior
Litigation Counsel, on brief for appellee.
Per Curiam. Defendant-appellant Daniel Atilio
Adinolfi pleaded guilty on September 10, 1992 to several
counts of an indictment charging him with conspiracy to
possess with intent to distribute narcotics, distribution of
narcotics, and possession with intent to distribute
narcotics. From October 22 to 29, 1992, one of Atilio's
alleged co-conspirators, Jairo Giraldo Parra, was tried under
the same indictment. On December 16, 1992, following receipt
of the presentence investigation report ("the PSI report"),
the district court sentenced Atilio to concurrent terms of
ninety-two months' imprisonment on each count, a supervised
release term of five years, and a special monetary assessment
of $ 350. In arriving at this sentence under the sentencing
guidelines, the district court made a two-level upward
adjustment in Atilio's offense level pursuant to U.S.S.G.
3B1.1(c) on the ground that Atilio was a "manager" or
"supervisor" in the narcotics distribution conspiracy.
Atilio appeals from this upward adjustment. We affirm.
In explaining its ruling that Atilio was a
"manager" or "supervisor" in this criminal organization, the
district court stated,
The Court has heard argument of counsel
and has heard the defendant and is now
ready to rule on the issue of the two
points on the issue of supervisor --
supervisory role. The -- this Court is
in a position to rule on this issue
particularly because I presided over the
trial of Jairo Giraldo Parra, and
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certainly the facts in that case
establish that -- those facts establish -
- establishes that the defendant
Adinolfi, Atilio Adinolfi, certainly held
a position of trust and confidence with -
- within Giraldo Parra's drug trafficking
organization and he certainly played a
supervisory role, a very important role.
He was present at most of the
transactions. He also drove with one of
the agents who was acting as a[n]
undercover agent. He also participated
in the transactions, and certainly he was
there in charge of the business, too,
sometimes in the counter, and he was a
very important cog in the trafficking
machinery constantly oiled by Parra.
Therefore, I shall deny you[r] counsel's
motion to eliminate the two-points
enhancement under Section 3B1.1B [sic] of
the sentencing guidelines.
Atilio objects on appeal, as he did in the district
court, that it was impermissible for the district court to
rely on evidence introduced at the trial of Jairo Giraldo
Parra. Since Atilio, having pleaded guilty, was not a party
to that trial, Atilio argues that he had no opportunity to
cross-examine the witnesses who provided the evidence the
district court used against him. Once that trial evidence is
excluded, Atilio contends, there was insufficient evidence
before the district court to justify the upward adjustment.
We have stated that "[i]t is well settled that
during the sentencing proceedings, a district court has broad
discretion in determining the information that may be
received and considered regarding a defendant." United
States v. Pellerito, 918 F.2d 999, 1002 (1st Cir. 1990). As
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long as the district court complies with the requirements of
Fed. R. Crim. P. 32 by making a finding as to each factual
matter controverted by the defendant, the district court "has
a right to use the evidence presented at trial in determining
the sentence to be imposed." Id. Accordingly, we have
upheld the sentencing judge's reliance on trial evidence when
the trial had resulted in a mistrial and the defendant had
subsequently pleaded guilty, United States v. Hanono-Surujun,
914 F.2d 15, 19 (1st Cir. 1990), and -- as in the instant
case -- when the defendant had pleaded guilty and did not
stand trial, and the trial evidence stemmed from the trial of
co-defendants. United States v. Fuentes-Moreno, 895 F.2d 24,
26 (1st Cir. 1990). Our review of the record shows that
Atilio did not controvert any specific facts from that trial.
Accordingly, the district court was entitled to rely on
evidence from the trial of Giraldo Parra in reaching its
determination under 3B1.1.
In any event, even if the district court had
disregarded the evidence from the trial of Giraldo Parra, we
find that there remained sufficient evidence to sustain the
challenged ruling. Since the question whether Atilio was a
manager or supervisor "is a question of the application of
the Guidelines to the particular facts" of this case, United
States v. Wright, 873 F.2d 437, 443 (1st Cir. 1989), we
review the district court's determination that the evidence
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was sufficient only for clear error. United States v.
Corcimiglia, 967 F.2d 724, 726 (1st Cir. 1992); Wright,
supra, 873 F.2d at 444.
To meet its burden of proving that an upward
adjustment is warranted, the government must demonstrate that
the defendant exercised "some degree of control over others
involved in the commission of the offense or he must have
been responsible for organizing others for the purpose of
carrying out the crime." United States v. Castellone, 985
F.2d 21, 26 (1st Cir. 1993) (quoting United States v. Fuller,
897 F.2d 1217, 1220 (1st Cir. 1990)). At the change of plea
hearing, the prosecution offered the following account of
Atilio's actions as part of the narcotics distribution
conspiracy.
Atilio . . . and others operated from a
business establishment known as Mi
Pequena Colombia Restaurant . . . in
Hato Rey, Puerto Rico to carry out an
operation of distribution of cocaine and
heroin. . . .
On September 25, 1991, the undercover
agent met again with Victor Rodriquez
Alvarez at the Magno's Pizza Restaurant
at which time another transaction of
heroin took place for $7,000. At that --
after that transaction took place, Victor
Rodriguez Alvarez carried the brown paper
bag containing the $7,000 to the Mi
Pequena Colombia Restaurant where Victor
Rodriguez, where Daniel Alberto Atilio
Adinolfi, Jairo Giraldo Parra and Edgar
Rodriguez Alvarez were waiting.
Victor Rodriguez Alvarez gave the brown
paper bag to codefendant and
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coconspirator Daniel Alberto Atilio
Adinolfi at which time they entered the
rear room of the restaurant.
On December 6, 1991, an informant of the
Drug Enforcement Administration made
arrangements with Daniel Alberto Atilio
Adinolfi to buy half a kilogram of
cocaine for $5,000. The confidential
informant proceeded to the Mi Pequena
Colombia Restaurant where he met with
Daniel Alberto Atilio Adinolfi at which
time they entered a vehicle, and they
drove around the block at which time
agents conducting surveillance noticed
Jorge Omar Lopez Almeida performing
counter-surveillance during the
transaction.
Once the transaction was completed inside
the vehicle, they returned to the Mi
Pequena Colombia Restaurant where both
the confidential informant and Atilio
Adinolfi exited the car. The cooperating
individual entered an undercover vehicle
being driven at that time by Special
Agent Hector Ortiz at which time agents
conducting surveillance noticed when
Atilio Adinolfi signaled Jorge Omar Lopez
Almeida who was directly across from the
Mi Pequena Colombia Restaurant, and they
also saw -- observed when Atilio Adinolfi
boarded the vehicle and proceeded to
follow the undercover car being driven by
Special Agent Hector Ortiz.
An undercover agent from the Drug
Enforcement Administration who was
conducting surveillance inside the
restaurant listened when codefendant and
coconspirator Edgar Rodriguez Velazquez
told Daniel Alberto Atilio Adinolfi that
the undercover vehicle was heading west
on Domenech Avenue.
Subsequently, on December 11, 1991, the
cooperating individual informed Daniel
Alberto Atilio Adinolfi that the half
kilogram of cocaine was short several
grams.
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On December 12th, 1991, the cooperating
individual went to the Mi Pequena
Colombia Restaurant where Daniel Alberto
Atilio Adinolfi provided him with six
grams of cocaine missing from the
original half kilogram of cocaine, and he
also provided him with a sample of
heroin. Both the missing six grams of
cocaine and the sample of heroin were
given to Daniel Alberto Atilio Adinolfi
by codefendant and coconspirator Jairo
Giraldo Parra.
Atilio agreed at the change of plea hearing that
this statement of facts was accurate, at least insofar as it
related to Atilio's own conduct. The PSI report set out
essentially the same version of the facts, to which Atilio
made no objection at the sentencing hearing.
Although it is true that this account by no means
establishes unambiguously that Atilio was a manager or
supervisor, we cannot say that such a finding was clearly
erroneous. Atilio's conduct in negotiating the details of a
sale of cocaine and agreeing to supply a shortfall in
delivery would reasonably suggest a managerial or supervisory
role if coupled with some evidence that Atilio to some degree
directed or controlled at least one other criminal
participant. See United States v. Veilleux, 949 F.2d 522,
525 (1st Cir. 1991) ("Setting the details of drug
transactions in such a manner as to orchestrate the sales,
where the offender also directs at least one accomplice, is
sufficient to uphold a 3B1.1(c) sentencing enhancement
against a challenge of clear error"). See also Castellone,
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supra, 985 F.2d at 26 (the fact that the defendant
"determined who purchased, when and where sales took place,
prices, and profit . . . can be said of any independent,
street-level dealer" and is insufficient where "[t]here is
simply no evidence that [the defendant] exercised any control
over . . . anyone else").
The necessary evidence that Atilio to some degree
directed or controlled at least one other accomplice is
present here. When Victor Rodriguez Alvarez entered the Mi
Pequena Colombia restaurant on September 25, 1991, he handed
over a brown paper bag -- containing $ 7,000 of proceeds from
the sale of heroin -- to Atilio. The fact that Rodriguez
Alvarez rendered the proceeds of the drug transaction to
Atilio reasonably suggests that Atilio exercised at least
some degree of direction or control over Rodriguez Alvarez as
part of the criminal organization. Certainly it was not
clear error for the sentencing judge to interpret the facts
in that light.
The judgment of the district court is affirmed.
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